Dan Price (thwack) wrote,
Dan Price

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Napster's legal fight

Ok, this whole Napster debate thing has gone on long enough. What is so difficult to figure out here? The same rules of thumb for copying/distributing any other form of media also apply to Napster. There's nothing different about it.

I don't use Napster myself. Why? No, not because I'm scared of getting caught or because I'm protesting its use. I simply have no need for the services it provides. Why go to ESPN.com if you're not interested in sports? So why use Napster if you're not interested in popular music? (Ok I wouldn't say I have no interest in it, but don't follow any specific artists or genres so I don't have a desire to get the newest songs in any way.)

However, I still have a very clear opinion of what uses of Napster are right and wrong. Just think - did you steel it? Well then it's wrong. Simple.

Merriam-Webster defines steal as "to take or appropriate without right or leave and with intent to keep or make use of wrongfully". Without right is the key here. Did you pay the owner for it? Then you have right. Did the owner say you may take it for free? Then you have right.

Then comes the "make use of wrongfully" part. In a recent CNN article, it was said that in a Sony case on the issue of VCR use, it had been established that home recording for the purpose of time-shifting was a fair use. You may use your VCR to record programs off live television to play them back at a more convenient time. That's a fair and legal use, which is why VCR's weren't shot down. However, using a VCR to copy a tape that someone else purchased from the owner is NOT fair or legal use, in my opinion. Especially if the tape says right on it that it may not be duplicated or redistributed. How is that different than if you were to record the same content when it's broadcast over live television? Simple. The former is legal, the latter is not. Even if the same content happened to be broadcasting over an available TV channel at the same time you were copying this illegal tape, it's still wrong. It's not the fact that you now own a copy of the tape that makes it wrong - I'm sure you'll agree that you could've legally gotten a copy of that tape off the air. What makes it wrong is that you got the copy by illegally copying a tape that said it was not to be copied or redistributed. Why do I have such an anal opinion on that, you ask? Well, because it shouldn't matter unless you're stupid enough to choose the illegal of two ways to make the same videotape.

All of that applies to Napster and MP3's in exactly the same way. For the same reason you can tape programs off live television, you can record music off live radio. However, if instead you decide to go on Napster and get a recording of the same song you just heard on the radio, but as an MP3 file which the artist did not willfully distribute, then that's wrong. Yes, the quality is different. And that's exactly why you can't say there's no difference how you get the same song. You "paid" only to hear the radio-quality version. (The radio station played it for you with permission of the artist.) You didn't pay for the CD-quality MP3.

Now, there's another whole issue in both cases, with VCR's and Napster. And that's original works. In the same CNN article cited above, the RIAA says "Napster has not even proffered to the court a hypothetical, future capability that would be noninfringing." That's just silly. There is a perfectly legal use of Napster, and that is for the distribution of original works for free at the will of the artist. If I write my own song and record it, and make it available on Napster, there's absolutely nothing illegal about that. Likewise, if any popular artist decides to make a few songs available for free on Napster (or any other medium), that's perfectly legal too.

So go ahead and prosecute all these people downloading entire albums of copyrighted music on Napster against the artist's will. I agree they're doing wrong. But don't prosecute Napster itself. I don't even use it, but I'm defending it because it's not the tool that's wrong. It's the people using it. As the saying goes, "guns don't kill people; people kill people."
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